 Good afternoon, friends, and we wish probably some of them will not be joining the sessions of tomorrow and in between. Happy Holi in advance. Being the festivity season, we thought that let's bring more colors to the knowledge and back to an electronic evidence, which is a very important facet for the purposes of a student of law and as well as lawyers. Electronic evidence in the courtroom, a lawyer's manual written by Urat P. Narankar is already doing very well in this regard. So we thought why not have insights in respect of electronic evidence in the courtroom, law and practice. During the session Mr. Narankar would be giving the key insights as usual because he has already run his sessions and his one of the forties is electronic evidence. We have received a few questions and we will also take the questions live from the YouTube Facebook as well as of the chat at the end of the session. The questions will not be answered during the session itself. So do remain stay connected and over to you Raj. And thank you for accepting our invite. Thank you so much because I hope I am audible to everyone. Thank you. It's always a pleasure to be on the dais of the virtual platform of Beyond Law. Last time I had spoken I think the Beyond Law has grown myths and bounds. And I wish all the best to Vikasji in this journey of knowledge, which is very close to my heart and I think will be close to every heart of a lawyer who is always a student of law. So thanks for having me here back again. I must tell you one thing at the outset. We had thought of calling this session as electronic evidence part two. The reason of calling it as a part two was because we earlier those of you who do not know we already had a part one and we spoke of certain basics in part one. But then we thought of not calling it a part two so that the people who are attending this for the first time should not feel left out. But let me assure to all my friends who were part of part one or those of who were not part of part one that they will not feel left out one or there won't be much repetition but I must indicate one thing with due apologies to all the persons who were part of first part that I'll be repeating certain basic concepts maybe in first 10 to 20 minutes as a short recap because today's session will be majorly on the cross examination and the practical aspects of the electronic evidence will not be much on the theory. So to just begin with first let us understand the whole concept of this electronic evidence from the standpoint of an evidence act because evidence and I will request all of the participants to have this book with them if at all if it's possible or can they can open the mobile application or the PC because what we will be discussing will have lot to do with the bare text. Friends the evidence act came to be enacted as we all know in the year 1872. No one gentleman called James Stephen enacted this I would say a very beautiful piece of legislation which is relevant even after I think almost one and a half century so to say and we still don't feel a need of a major amendments and I think there lies a success of an act like the evidence act now with this you must understand one thing when this code was written way back in the year 1872 there was obviously this these all electronic gadgets and all these applications were not even in the foresight but now very interesting part comes in if you look at the definition of the word document which is you will find in section two of the evidence act but document is defined very interestingly the word document is defined is that any matter expressed on any substance by any means for the purposes of recording something please mind the words any matter recorded on any substance by any means I would like to give you a very interesting example which one of the author had given I think it's a book by one author called as Vipassarthi he gives a very some some analogous example that assume for a moment that one farmer wants to defame his neighbor he has two options either to go out and shout publicly about how stupid the neighbor is he chooses another way he writes on his buffalo that my neighbor is an idiot person and he lives that buffalo in a town to roam around that buffalo roams around in a town and you know that everyone comes to know that this and this gentleman this neighbor is an idiot person now the deformation suit is filed by obviously the person who was agreed with all this deformation now the primary document in this case will be a buffalo because this fairly falls within definition of a document anything written on any substance by any means for the purposes of recording something and therefore this buffalo becomes a primary evidence or document so to say now take an example now this is we are talking of a centuries back scenario come to today's time those of you who have read who have seen the CD being written upon you will see a ray of light doing some scratch scratch on on a on a platform of a CD the surface there is something being written something being each by that laser jet now what is that it is what we call as a writing of a CD now again will this not be something any matter written on any substance by any means it will be and here it becomes very relevant to appreciate the definition of document that the definition of a document in its current form is capable of taking care from buffalo to the present day compact disc because the definition is so widely worded that the legislators in the year 2000 when they enacted the information technology act they did not feel it necessary to amend the definition of document for the reason that I told you that the word definition itself has been defined quite extensively you will just excuse me for a minute sorry there was some mic issue with my system yes so the definition of the word document has that's the beauty of the definition that it is it is capable of taking the care of something that was in existence a century back and is still relevant let's go a step ahead if you look at the definition of evidence the evidence is of two types first is an oral evidence another is a documentary evidence if you look at the definition of evidence as defined again back in the evidence act it says that the documents including electronic records produced for the inspection of the code is what is the definition of evidence or documentary evidence so to say now you must understand one thing what we will be discussing today will be about admissibility of electronic record now what do I mean by admissibility of electronic record and why is it relevant for today's topic friends when we will be discussing the topic of cross examination the cross examination as we will be discussing will be pertaining to an admissibility of electronic record and not the probative value of an electronic record and let me explain both of these concepts for my friends please understand the evidence is of three the evidence basically has three limbs first is called an admissibility second is called as a relevancy and third third one is called as a probative value of an evidence now what is an admissibility let me just explain in brief let's take an example a very simple example that I had a discussion with my client in my office about a case next day the my client is under examination you know under cross examination the other side lawyer asks him a simple question Mr can you tell the court what was the discussion that you had with your lawyer yesterday now is this something that is relevant to a case it might be because the client must have spoken to me about my case so it's relevant but is it admissible obviously it is not because that's a privileged communication under section 126 of the evidence act so we get our first example of admissibility relevant but inadmissible take a second example where the witness under the cross examination is asked suppose it's a case about development of a project at Kulapurot at Pune and the witness is asked can you tell the court how many projects have you done across Mumbai technically is the question admissible it is admissible because there is nothing in at least nothing in the evidence act that prove it's asking of a such a question it's neither scandalous nor privileged but is it relevant technically not because the project in question is a project of Pune so we get another example where the question is admissible but irrelevant and let me now deal with the third limb of the evidence act and this is all for my junior friends which i had spoken about in even in my last lecture but i'm just repeating as i told you just to brush up third limb is a probative value of an evidence now what do we mean by probative value of an evidence suppose if a person claims that he had seen person a murdering person b in a broad daylight he comes to a court he's cited as a eyewitness and he's under examination now assume the same scenario and he says yes i saw that person being murdered and this happened in before me now take examples has changed the time of the day this doesn't happen in a broad daylight but this happens in a midnight when there are no street lights now the witness is the same he claims to be an eyewitness to murder of b but the probative value of evidence will be substantially lower because you cannot believe a testimony of a person who is claiming to have seen that in the pitch of a midnight and when there were no street lights so the testimony remains the same witness remains the same incidence remains the same but the probative value of the evidence substantially goes down so please appreciate my friends that today what we will be discussing will be only admissibility of electronic record because so far as the relevancy is concerned exactly same rules apply to electronic evidence as it applies to documentary evidence this is something very important that you must remember in the course of a trial we got section 65a and b on our statute books just for the sake of admissibility of electronic record we did not get it on our statute books for the purposes of relevancy of electronic record that still is being dealt by our old evidence act now where do we get the chapter of relevancy i think all of you will be aware that the evidence act is divided into 11 chapters chapter 2 of it deals with the relevancy of facts and section 5 very categorically says that evidence can be given only of the facts which are relevant and not of any other fact you also read this with section 136 which we'll find in chapter 10 of the evidence act section 136 is a very important section to which i in fact called a gateway to the evidence act because section 136 tells me that if a person proposes to give evidence of any fact the court will ask him as to in what manner that fact will be relevant if it is proved and only if the court is satisfied that yes the fact will be relevant if it is proved then the court shall admit the evidence not otherwise so friends please remember that the only evidence that can go on record is a relevant evidence so the admissibility technically comes later because the admissibility of the documentary evidence is what you get in chapter five of the evidence act and relevance is what you get in chapter two of the evidence fact so the legislative intent was this that first relevancy has to be seen and this is the concept that is reinforced by section 136 when it says that only relevant evidence shall be admissible so what comes first is a relevancy and what comes there comes thereafter is the admissibility unfortunately in the course of day-to-day practice you will see the judges repeatedly saying that let the evidence first be recorded and we will check the relevancy thereafter let this first question go on record but sorry to say that this is not what the legislature ever intended you cannot allow anything and everything to go on record unless the court finds it explicitly relevant so this is something that we all must keep in mind for the times to come now let us look at the scheme of the act we will be talking of chapter five of the evidence act which is where section 65a and section 65b about which we are going to talk at length today are situated now have you ever wondered that what would have been the fate of the electronic evidences had this chapter been not there or had these sections been not there just imagine of the regime pre-2000 when we did not have these sections in a statute book can you tell me what was a section that was being invoked the story is very interesting if you look at the whole structure chapter four talks of oral evidence section 59 and 60 59 says that the content everything can be proved by oral evidence except contents of a document that's not going to that's not of the chapter for today's discussion section 60 says it must be a direct evidence it can't be yours evidence against not relevant for today's purpose interesting journey begins from section 61 61 tells me that the contents of a document can be proved by primary and secondary evidence so far so good section 62 then comes into play and section 62 defines what is a primary evidence which says the document itself produced for the inspection of the court is a primary evidence section 63 tells me what is a secondary evidence and if you see one of the clause of section 63 it says the copy is made from the original by mechanical process please remember this i will not go into other limbs of its certified copies copies compared with no we are relevant we are only concerned with the relevant clause which is copy is made by mechanical process which in itself assures accuracy thereof is the is the clause we are concerned with today now please come to section 64 which says that you must give the primary evidence except in the cases here in after mentions mentioned and that is what section 65 talks of in what cases secondary evidence will be admissible section 65 let us again do away with rest of the clauses when the original is in position on power of someone when the original is lost and destroyed we are not concerned what we are concerned with is clause d when the original is such that it is not easily movable you can give the secondary evidence of the contents of it now just imagine you would remember that earlier time we had these huge computers and desktops obviously these were not the things which could is which we could easily move to the court even laptop for that matter we cannot easily put that as an exhibit in the court it's something that is not easily movable therefore before 2000 this was a section section 63 read with section 65d which was being invoked by the proponents of electronic evidence to say and to tell the court that myelors this is something that is not easily movable in the court these are the copies made by the mechanical process which itself ensures the accuracy thereof therefore please admit this document into evidence so these were the two entry points for the electronic evidence before we had the section 65a and 65b in our statute books 10 more minutes and we will cover the history of this section 65a and b now please remember that in 2005 around we got a judgment of nojot sandu where the supreme court said that section 65a that is newly brought uses the word that the electronic evidence may be proved in accordance with section 65b supreme court said that word used this may be and therefore it is not compulsive on you to only resort to section 65a and b let us go back to the pre 2000 regime and let us prove that to prove these electronic evidences as we are doing it before and therefore 65a and 65b were done away with virtually in the case of nojot sandu it almost took a decade for the supreme court to revisit this law in the judgment of pv and work in pv and work supreme court said sorry what you read is section 65a please read section 65b and the the word it it begins with is the non-obstante clause non-obstante clause mean notwithstanding anything it means that section 65a and 65b will prevail over all other earlier sections so to say 61 62 63 64 and 65 therefore please do not look at those sections you will be only looking at 65a and 65b and therefore out went the judgment of nojot sandu on the ratio that came with it and we fall back to the regime that 65a and 65b provided and this view was reaffirmed as you all will be aware of in the judgment of arjun panditrav khutkar now i will not elaborate this very elaborately because as i told you i have already spoken at length on these two judgments in my earlier webinar but this was just to show you the journey with which this all began and where we are today so that today's scenario is this that with the non-obstante clause of section 65b you cannot look at anything that is before 65a and 65b okay so now let us come to section 65b 65a as i told you very specifically says that electronic evidence may be prudent in accordance with 65b now this may be read as a shawl because of the judgment of arjun panditrav khutkar now there is a very beautiful judgment that probably the bombay lawyers might be aware of is a jaymeen jewellery exposed judgment now in this judgment the bombay high court has very beautifully distinguished the concept of admissibility and the relevancy of 65b that how 65b only deals with the admissibility and not the relevancy and there the honorable bombay high court has said that look here if you provide section 65b certificate along with some electronic evidence it does not mean that what you say in that electronic record is correct and true all it says that that document is admissible into evidence it can be exhibited in evidence it does not prove the truth and correctness of the contents let me pause here here again for a minute for my junior colleagues and let me tell you the difference between the contents of a document and truth of contents of a document suppose if a writes an email to b calling b an idiot person b files a suit in the court of law of deformation b obviously puts that email into the record for exhibited the document is exhibited no does that mean it's it's it's along with 65b that email is filed along with 65b document is exhibited in evidence under order 13 of cpc it's a civil suit for deformation let's assume for a minute does that mean that what a says in his email is true and correct does that mean that b is actually an idiot person it can't be because then the entire foundation for the suit will go it will only mean that a had indeed sent an email to b calling b an idiot person and therefore the document is marked into evidence because it is accompanied with section 65b certificate so please remember the contents of a document and truth of contents of a document are two completely distinct concepts please do not confuse them to when you are dealing with 65b certificate even if you produce 65b certificate your client or you will have to independently prove the truth and veracity of the contents it is not taken care of by the 65b certificate now let us start decoding section 65b and then we will begin our journey into the cross examination aspects of electronic record now if you look at the definition it is very interesting 65b the whole concept it says that notwithstanding anything contained in this act those of you who have a bear act ready please you can have a look at it i'll be only covering the major aspects of it as i go along electronic evidence is not separately defined as i told you it is again we have to fall back on the definition of document all that you only can have about electronic evidences all contained in this section 65b and therefore justice nadiman call this as a complete code in itself so please mind the words of 65 be very careful it says notwithstanding anything contained in this act any information contained in an electronic record printed on a paper or copied recorded in optical or magnetic media produced by a computer shall be admissible into the evidence and shall be deemed to be a document please let us pause here for a minute and we will break this definition notwithstanding i have already told you what is the purpose of this it will now prevail over everything please remember here again that electronic record is not defined it all it says that information contained in an electronic record printed on a paper so suppose even if the email is printed on a paper that will constitute an electronic record or copied stored or recorded in optical or magnetic media what is optical media is a cd what is magnetic media is a hard drive now these electronic records but let me tell you that the pen drive flash drive is the magnetic media it is what is called as a flash drive or a flash storage therefore technically speaking 65b does not cover pen drive or does not cover flash drive but as i had told in my last talk that we have to apply the mischief rule of interpretation when we have to take even pen drive into the compass or in the in the ambit of section 65b therefore any information contained in an electronic record stored copied or recorded in magnetic or optical media produced by a computer please let us pause here for a minute and let me tell you some very important concept what is produced by a computer suppose if I type out a petition on my laptop and if i print it is it not something produced by a computer technically it is because printer is what from which the whole print is coming out right or the data is fed into my laptop and then it has come out through a printer so is it not something produced by a computer it is does that mean that every petition that i am filing in the high court or every plane that you are filing in a trial court will require 65b it won't it will lead to a very absurd situation because the computers have become omnipresent you will have them for each and every purpose therefore the word produced needs to be given a very constructive meaning and there's a judgment of r versus red r versus w ad this is a from the uk court of law united kingdoms kings bench uh where the word produced has been given certain connotations the court has said that word produced means that there must be some process that must have been done by the computer on the document it must have been subjected to certain process by the computer if the computer is merely used as a means of storage or is used just as a means for input then that does not mean produced by a computer exactly same thing happened in this case that when i'm putting my petition when i'm typing out something on the screen i'm just putting in the information technically there is no arithmetic or analytical process that is happening and therefore the word produced has to be given a very constructive meaning however if i put an image into my laptop and if i do something if i crop it or even if i put an image ultimately the image acquisition source is the camera when the camera lenses capture object what it is capturing is the light that falls an object the reflection of a light that falls an object and there is a process happening behind the lens and therefore that falls within the definition of produced by a computer so please remember this important distinction of produced and processed what the legislature meant is processed by a computer technically produced cannot be taken in a literal fashion it will lead to a very bizarre consequence okay let's let's move a little bit produced by a computer shall be deemed to be a document please understand why deemed to be a document because the definition of document as we just saw is not amended and therefore the deeming fiction is incorporated the legislature had said that look here these all things optical magnetic paper shall be deemed to be document and shall be admissible into evidence admissible underline the word admissible into ones into the evidence without further proof or production of the original as a proof of the contents of which only direct evidence could have been admissible let us bifurcate all these words shall be deemed to be a document and shall be admissible into evidence without further proof let me answer a question that is being asked to me by many of the attendees in most of my seminars that whenever I give an email in the court of law whenever I give a transcript in the court of law is it necessary for me to produce the original device along with it technically no because the words of the section itself say that the moment you comply with 65 you know what are those compliances we will see that in a bit but the section itself gives me an excuse or section itself gives me a leeway of not producing anything more please underline the word without further proof or production of the original this is a disjunctive these both will have to be read independently I don't need to do anything further the burden of proof on my shoulders where the electronic evidence stands discharge the moment I give section 65 be certificate I don't need to do anything further or nor do I nor am I expected to produce the original in the court of law let me here again tell you all most of you are under impression that if I produce the original in the court of law I don't need to give 65 certificate in fact this is the view that is also endorsed by Justice Nariman in the judgment of Arjun Panditrao but let me tell you all that with your respect and this this aspect I have elaborated in my book as well that there is no concept of original and copy and copy thereof in the world of electronic evidence there is no concept of primary and secondary these are the concepts that exclusively exclusively belong to the older generation of paper documents in the world of electronic evidence everything is secondary everything is a copy let me just tell you in a minute for example if I'm typing got something in my laptop if the light goes off if the battery is down my data will not go anywhere if I put the charging cable back into my laptop what I will see on the screen is the saved version of the microsoft world you must have all experienced this how does it happen because while I was typing it out the computer without me knowing made numerous copies thereof so which copy of it is original you can't ever say so there is no concept of original and secondary in the world of electronic evidence so therefore please remove this understanding once for all that we can dispense with 65 b if the original is produced in the court of law 65 b is must now let us move ahead when will that be admissible and when will that be deemed to be a document it says provided the conditions in section 65 we are complied with now what are those conditions is very important the first condition now please look at 65 b2 we are done with 65 b1 it says the input must have been fed into the computer in the ordinary course of the business for the purposes of for the purposes of activities regularly carried on by the person with lawful control let me just explain to you what does this mean it means that the output that you are trying to produce in the court of law must have been produced by a computer which is used regularly why does it matter I'll give you an example from my own experience there was a case where a CCTV evidence was sought to be produced as evidence you all are aware that the CCTV cameras have the time which is running on its screen a live time a real time when we examine the piece of evidence I found that the timeline on the CCTV was incorrect and when we dug into it we found to our surprise something very interesting the reason was this that the CCTV was not in a working condition for more than two years just a week before the incidents happened the CCTV was repaired and it was put to work what happened because of it I'll tell you there is a there is a clock which is called as a bios clock b i os which is an inbuilt in even in your computer even in your laptop even in in every device that you handle what does it do it maintains the system time so the real world time is different and the system time is different you will have to synchronize them too so as to get the real time but if you do not use a device for a couple of years or for a couple of months depending on a device the bios battery completely drains out that leads to resetting of time and date so suppose even if it's 4 p.m in my clock the reset time might show 1 or 12 30 or 10 30 and you all will appreciate that in the case like murder where the timeline is of the most crucial importance particularly in the cases where the last scene with the deceased and of cases how important the timeline is in these kind of cases this can pose a great jeopardy to the accused and therefore it says that the device must have been used regularly and this is the first condition of 65 b you cannot take this definition at its face value you will have to dig deep into it to understand the purpose of it second please look at the definition the second clause of it it says the computer output as derived was regularly fed into the system that is the second condition now what do we mean by regularly fed into the system i'll give you another example from one of my arbitration in one of the cases we had a voluminous record produced by a computer and i asked the witness that can you really vouch for the correctness of this he said yes i can i asked him a question that you have file 65 b can you tell the court or tell the tribunal that the data as derived was regularly fed into the system in the ordinary course of the activities he he thought for a while he said yes it was regularly fed in in the ordinary course of activities i said can you please produce the locks of this computer he was reluctant but ultimately we prevailed on the tribunal to summon the call the the locks of the computer and to our surprise and also the surprise of the tribunal what we found was very shocking just a day before the production of the evidence that entire data was fed into the system now will you really call these data regularly fed into the system in the ordinary course of the activities technically you cannot call this data as regularly fed into the system in the ordinary course of the activities because this is what is called as creation of evidence you cannot flood the system with the evidences when you become aware that i need to put that into the record it has to be regularly fed in the ordinary course of the activities these words are very important because these are the exactly same words that you will find in section 32 of the evidence act to which we also call as the business records exception in the US law in the united states this concept is known as a business records exception that if the data is fed in the ordinary course of the activities law generally presumes that the person will not regularly input the data which is false or fabricated therefore the law attaches certain degree of authenticity certain degree of reliability to the data which is ordinarily fed in the regular course and therefore this 65B specific this part will have to be taken with always a pinch of salt you will have to probe the witness when was the data fed if the witness is in the regular course you can call upon the witness to produce the logs of a system let me tell you just explain in a minute what is the logs in my book i have explained these technical aspects i may not be able to that effectively explain all these concepts in this webinar because that is more of a carry where with the help of diagrams and some snapshots i have explained but let me tell you that whenever a system is run suppose for example if you open your laptop that is added as one of the entry in the log even without you knowing it when you open a file that is entered as a entry in the log without you knowing it therefore every action that you do reflects in a log and therefore logs of a computer is something very important can you access the log yourself you can again the technical process involved i have elaborated in my book but very difficult to explain on a screen but let me tell you even if you try yourself to access the logs of a computer it's not very difficult you can just search in the bar that you see at the bottom you can just see the logs and you can access it even from the control panel you can go there let's come to the third condition and let me tell you here i think this i have spoken in the last session so i won't again elaborate much but let me tell you unfortunately the condition that we just spoke of that the data was regularly fed is something that is not foolproof merely a regularity of the input cannot vouch for the correctness of the input and last talk i had given an example of a weight scale suppose if i am standing on a weight scale just to check my weight and if the weight scale is already made at five kgs instead of zero kgs then my weight will be shown as plus five kgs every time i stand on the machine so suppose if i'm standing on a machine every day in a month the data is bound to be wrong therefore the regularity of input does not matter what what matters is the correctness of the input if it's if the original value itself is plus five then mere me standing regularly on the machine will not make it any more accurate therefore please understand the regularity of the input is not the only criteria however under the evidence act unfortunately so to say only regularity has been focused unduly focused not the correctness and therefore in the uk now you will find a section analogous to section 65 b has been done away with it is no longer in the statute books electronic evidence is treated at par with the documentary evidence probably what was even i think anticipated by mr james stefan but now the uk does not follow the regime that we follow because our system unduly emphasizes on the regularity of the input and not the correctness of the input please now come to the third requirement third requirement tells me that throughout the material part of the period the computer was being used or operating properly it means that the computer if is malfunctioning or if is not working if is not in working condition that will affect the correctness of the system i don't need to give you a separate example i think the first example that i give you of cctv i think is good enough for you all to understand why the regular functioning of a computer is so important you can ignore d because d is almost like b and it doesn't require any specific illustration now please understand friends that the document this electronic record let's revisit what we just said a few minutes back electronic record shall be deemed to be a document and shall be admissible into evidence after it complies with these technical conditions and one non-technical condition technical condition as i told you it must be functioning properly it must be regularly fit these are all technical conditions there is one non-technical condition which i just want you to focus on this non-technical condition is production of certificate what we call as a 65 b certificate this certificate has to be given by the person who is in charge of the system who is in charge of the device it cannot be given by anyone else let me give you an example suppose if there is some incidents that happened in my office of theft for example and i file a complaint to the police officer when i give the cctv footage in the custody of police it will be me who will be in charge of the system and therefore i will have to give section 65 e certificate suppose if the police officer sent his footage to a forensic lab of theirs to analyze and if they analyze it then that 65 e certificate will have to be given by the concerned forensic lab i can't give for it i can't do it for them nor can they vouch for the correctness of my system nor can i vouch for the correctness of their analysis there will be therefore 265 b certificates which sounds little bizarre but this is what the law is and this is called as a concept of a contemporaneous certification of which again i have spoken in the last talk contemporaneous certification and multiple certifications these are the two concepts we will find in two judgments of the madhya pradesh high court one is judgment of sanju versus state of mp it's a 2019 judgment of madhya pradesh high court where the courts have elaborated on this concept of contemporaneous certification and multiple certification what is contemporaneous certification the courts have said that suppose if the incidence of theft happens on let's say 10th of march i cannot give a certificate in the month of let's say december it has to be contemporaneous because standing in december i cannot vouch for the correctness of my system in the month of march and therefore the certificate has to be contemporaneous some of you might ask me a doubt that how will i anticipate that this footage will have to be used in the trial i come to know only in the month of december that that's going to be a piece of evidence so how am i expected to otherwise it will be like every day i have to keep preparing 65 b certificate just with the hope that i will have to use it in the future let me tell you that the courts have taken care of this contingency in that judgments and i will earnestly request you to go through both of these judgments first one is a sanju versus state of emp another one is kamal patel versus ram kishore dogne again of the madhya pradesh high court the courts have said that no if it if it is a case where you are not aware at that point of time that this is going to be a crucial piece of evidence then obviously we are not insisting for a contemporaneous certification however if you are aware at that time that this is going to be used as a potential evidence in the court of law then you must prepare a contemporaneous certificate let me give you a same example when the theft happened in my office i am not obviously aware i was out of office i was not aware that this footage is going to be of so much importance so i cannot be saddled with the responsibility of making a contemporaneous certification or a live certification but when the footage goes to police when the police machinery is analyzing it the forensic lab is analyzing it they are surely aware that this is what we are doing for the purposes of proving in the court of law they are saddled with the responsibility of making the contemporaneous certification they obviously cannot throw up their hands and say no no we were not aware that this obviously they were aware that was the reason the material was sent to them in the first place so go through these two judgments which are very important coming back to the point where we left off it must be signed by the person who is in charge of the system so suppose if it's a CDR it has to be authenticated by the person who is in charge of that system of mobile company it can't be the iu it can't be anyone else it can't be the pp's office it can't be you it can't be a complainant it has to be the person who is authorized by that particular cellular company to do it now what he has to say it doesn't it is not required to be in specific form many of you have been asking me the formats of this 65b certificate and i have said this even on last occasion that in my book i have given certain formats but let me tell you that these are just illustrations i have dealt with 65b of a cctv evidence how do you put 65b or of the emails or of the cdrs what are the ideal formats of 65b certificates but let me tell you that you can also yourself prepare an ideal format of 65b certificate it is not a it's rocket science it will depend on case to case basis you will have to only do three things in your certificate first you have to identify the electronic record you have to identify the manner in which the electronic record is produced and you have to identify the devices involved in the production of electronic record for example identify the electronic record let's take my case the electronic record is cctv footage the manner in which it was produced it was put up at this place it was covering this much area this was the make and machine time this was the bios time it was in sync with the real time this is all you are going to say in 65b certificate mind you then you will say this cctv was handed over to police on so and so date just to take care of the concept of chain of custody i'll tell you in a minute about this very important concept this was handed over to police on this and this date then the police took it for the further analysis this is the end of your role you are not supposed to say anything beyond what happened when you gave it to police now the ball goes in the court of police machinery so you did what you identified the electronic record you identified the manner in which it was produced you identified the devices involved in the production that is all and ultimately you say in that certificate that this information is true to my knowledge and belief though the word used is and it can be only knowledge or belief this is what justice nariman also says it can't be both i'll tell you why for example if it's my machine it's in my knowledge that cctv was working properly correct but if suppose if it's not in my knowledge suppose if the pp's office or the public prosecutor's office has to given let's say certification then they can't vouch for my system they can't have a personal knowledge of how well my system is working so they will have to say in my belief so it can be either knowledge or it can be belief it can't be both though the word used is and it should be technically or is what even justice nariman says in his judgment so this is what it is about the electronic evidence now friends it so many times it so happens that the person who is in charge of this system refuses to come to the court of law he says i'm not going to come to the court of law let's take a case that theft happened in my office but my cctv does not record it my neighbor lawyer's chamber is there his cctv records it i go to him i say sir please i want 65 b certificate this is what has happened in my office i would need your assistance he says sorry i can't really help you i'm over tied my hands are full i can't really do all this sorry i won't be able to do it now technically speaking 65 b says that the certificate will have to be given by the person who is in charge of a system here the in charge says no i am not coming then what do i do shafi mohammad's case i think around 2016 or somewhere supreme court took note of this anomaly and said that in these kind of cases 65 b insistence can be dispensed with you are excused from 65 b compliance because you can't catch a hold of a person and bring him to the court but in the judgment of arjun panditra of kothkar justice nariman differs he says even if he is not voluntarily ready to come to the court of law you can use certain sections to summon him and shafi mohammad is no more a good law and he then technically overrules shafi mohammad saying that it dilutes the impact of 65 b how do you call that lawyer my neighbor lawyer to the court of law as a illustration he gives three sections to us arjun panditra gives me three weapons first is section 165 of evidence act i think all the my judges friend the the newly minted young judges will have to read this section 165 because i would call it a repository of powers section 165 of the evidence act says that a judge in order to ascertain the truth or proof of a fact can ask any question in any form in any manner to any witness relevant or irrelevant and the lawyer or his client will not be allowed to object to such question being asked nor will they be allowed to cross examine the witness for the answer that he gave just look at the extent of the powers that section 165 invests the court with and justice nariman refers to this section that and says that look here we have a section which can require attendance of a person to the court of law then he refers to another section which is section 311 of court of civil proceed court of criminal procedure which again gives the equal power to summon any witness or examine any person at any stage he again refers to section 91 again of CRPC which gives a right to the court to summon any witness or anything in the court of law and ultimately arjun panditra says that you can use all these sections to call the consent witness to the court of law and procure 65 b so therefore do not plead helplessness you have these many sections though it is not mentioned let me tell you if i remember correctly order 16 rule 6 of cpc also allows the court to call to summon any person to produce a document this is so far as a civil trial is concerned and 91 and 311 i just spoke about our so far as the criminal trial is concerned and evidence acting as you are all aware applies to both civil and criminal therefore 165 will apply to both of it but what happens to a case where in spite of you doing your best the witness does not turn up there justice nariman had said that then you can claim exemption from compliance with 65 b if you are running from pillar to post to get this certificate and still if you are not getting it which is precisely what happened interestingly in arjun panditra case itself justice nariman says then your excuse from the performance then you can claim an exemption because law does not compel the impossible is a very famous latin maxim and therefore if it is impossible then forget it then you can get the certificate you can authenticate it you can give it and the burden then shifts on the other side to disprove it now let me tell you how to cross examine but before that let me also tell you many a times it so happens that in a particularly in a family disputes husband gets an access to wife's phone and gets certain crucial records and uses it against herself let's say for for for proving let's say charges of adultery what happens to these kind of cases now let me tell you that the these kind of illegally obtained electronic evidences are admissible in court of law there are many judgments from the of the honorable apex court and the high courts which say that the illegal evidences illegally procured evidences are per se not inadmissible they are admissible provided they should be relevant under chapter two of the evidence act what can you do as a counsel for the person whose right of privacy is affected you can invoke section 43 of the information technology act section 43 says that if a person's resource like a computer or computer resource or any device is compromised or if he's accessed without his permission then that person is entitled to damages and I myself have dealt with many cases where the person's privacy was compromised in litigation during the litigation we have got I wouldn't say exemplary but sizable compensation because of breach of right to privacy so technically you cannot oppose the production of the evidence but you can probably take a revenge so to say by resorting to other provisions of law this not only entails into mind you civil remedy section 43 of the information technology talks of damages so basically a civil remedy it also contemplates a criminal remedy which is section 66 and 66 of the information technology act so person will probably will have to face jail as well if he unauthorizedly accesses someone else's system therefore this is a very drastic section for 66 there is a provision for obviously filing of a first information report FIR but you can also get damages and the authority for getting the damages is called as an adjudicating authority which you will again find in section 43 of the information technology act so just this is to give you now how do you draft the complaint how you file a complaint how you actually plead the facts and what are the essential ingredients is something that I have elaborately explained in my book there's a special chapter in my book which talks of how to deal with illegally obtained electronic evidences in fact there are few judgments to which I have made a reference to where the high courts have said going against this flow of judgments the high courts have said sorry we will not look into this evidence because this is obtained by violating the person's right to privacy and right to personal integrity you're all aware after justice put to swami's judgment the honorable apex court judgment injustice put to swami's case now the right to privacy is held to be a fundamental right so it cannot be so easily compromised and therefore the high courts have taken a view that we will not look into this evidence which is collected by violating someone else's right to personal integrity but there are very few judgments to that effect and majority of judgments are in favor of reducing the evidence or admitting the evidence but as I told you that these are the remedies that you can have now at what stage do you have to give 65 b you can give it at any stage this is what now the supreme court has said 65 b is a curable remedy even if you don't give it at the outset you can give it at any stage of the trial but you will have to give it before the document is marked into evidence if you don't give it the document cannot be marked into evidence however if by mistake or through inadvertence you forget to object as a counsel for the other side if you forget to object to marking of a document or marking of an electronic record though it is not accompanied by 65 b and if that electronic record is exhibited then sorry your doors are shut there are judgments of the high court and supreme court which say that if once the document is exhibited there is no provision for de-exhibiting of a document that is concept unknown to Indian evidence act once it is exhibited you are supposed to have waived that objection therefore you have to be on your toes on your guard to see that no document which is purported to be electronic record goes into the evidence without 65 b and without laying down the foundational requirements so far as arbitration is concerned section one of the evidence act itself says it doesn't apply to arbitration section 19 of arbitration act also excludes evidence act so you can't insist on technical compliance of 65 b but the technical though it is not technically required in spirit you must observe the spirit of section 65 b even in arbitral proceeding you must lay down the foundation of authentic electronic record let me now on screen project a part of my book which is dealing with the electron how do you actually deal with the electronic records how do you actually cross examine the electronic record I would just share my screen can you see it on a screen I would just need some confirmation maybe by vikaji yeah these are some of the illustrations I have given in my book and I have actually dealt with real life cases suppose for example if I am dealing with CCTV evidence how can I cross examine the witness suppose if I am dealing with the email how do I cross examine the witness if I am dealing with the hardest export how do I cross examine the witness and I will just refer to one or two examples just to give you a fair idea of how we have to approach the electronic evidence let us take the illustration number eight I'll just read it out for you because he is is the screen are the words legible no I will try to increase the font size I'm not very sure if I'll be able is it now better yeah now better you can still make it bigger yeah now it's better a computer is apparently used by a person for making certain searches and downloading certain files this information is used to collaborate the charge against the person take a case where the hard drive is seized by the police from the computer and the computer is not seized only a hard drive is seized without assistance of a forensic expert and has been given to a foreign forensic expert for analysis your client believes that some data is tampered or lost during its handling such destruction can be deliberately or inadvertent if this charge is driven home it would attract a penalty under 204 now let us look at how we can examine cross examine this proponent of an electronic record let me pause here for a minute and tell you what I mean suppose if your client is charged with a case like murder and there is no circums there is only a circumstantial evidence that you were your client was seen last with the deceased person and therefore the charge is sought to be driven home saying that this man was seen last with the deceased and therefore this is the circumstantial evidence and you feel are your client tells me no sir I was with him for for around 15 minutes and thereafter I left him we were in a shopping mall doing shopping together and if you check the CCTV footage you can see me walking out much before the incidents occurred there you feel and suspect that certain data is deliberately withheld or certain data is omitted or only selective data is produced then how do you cross examine is something that we will just have a look for example there is a report and you will always see the word use the summary of a report you will ask the forensic expert can you tell why have you used the word word summary of the report because this report is supposed to be the summary if this is the summary then can you show where is the entire report this is the only report that I have will it be correct to say that summary of the report cannot be prepared unless there is a full report I'm very sure there won't be any answer to it or if the answer have a question can you tell me what steps did the original the expert will have to describe the methods if they are not forensically sound then the methods can be attacked and attack on his expertise can also be launched did you prepare the hash values of the data before its acquisition he might say yes he might say no will it be then correct that you did not have any material to verify the hash value of the data post processing yes could you see or notice during the forensic examination any data being overwritten or deleted no I did not see that did you look for it I was not asked could you have done that if you're asked yes certainly is it possible that the data that was handed over to you for the forensic analysis was the selective data and not the entire one that was there on the hard disk it is possible did you know no I need not do you know who removed the hard disk from the computer no I don't are you aware of the steps taken by the person for removal of the hard drive not exactly will it be correct that every access met to a computer system would leave digital footprints and would lead to some alteration and creation of log files and the data would no longer be the same yes to some extent did you notice any user account on any of the hard drive yes I did can you tell me the reason for its non-mention in the report nothing specific as such did you check if the computer was password protected no I did not and then friends it goes and goes forth let me pause here for a minute and tell you that this is the case that I have actually taken from one of the real-life case where after the cross examination this was just the beginning of a cross examination almost the questions run into I would say around 80 to 100 questions at the end of the cross examination finally the court rejected that electronic record as inadmissible because the expert what the expert was given was only a hard drive that please mr examine this and give us the report he did not make the hash value now what is the hash value let me pause here for a minute tell you suppose if this is the hard drive whenever this is given to me as an expert first thing I have to do not only as an expert as a police officer also what first thing I have to do is to make a hash value of this hash value means that it is a software that even if you google you will come to know even you can calculate the hash value of any file it may be a word file may be excel file may be an image file may be a hard drive you can make a hash value this hash value will be same if the data is not changed so even if I change this data 100 times if I make it from this iPhone to another iPhone to another iPhone to another iPhone hash value will remain the same as long as the data is not changed even if one comma is changed in this data the hash value will change therefore it is very necessary for the investigating authorities to calculate the hash values whenever the data is acquired and make a note of it and when the data finally reaches in the court of law again hash value will have to be calculated and both of them will have to be compared with each other so as to so as to certify that the data has not changed if the hash values are same it means the data has not changed one single comma changed the entire hash value changes it means the data is compromised in the case that I just read out the expert admitted and this is from a real life the data the expert admitted that I did not calculate the hash value when the hard drive arrived at my lab I calculated the hash value after the data was processed technically it will be of no use it will because the hash value at the time of in at the inception is the most crucial otherwise how else will you compare the hash value therefore whenever the data changes the hand hash value will have to be prepared let me give you an extreme example the example that I just gave you from my office if there is a theft if I am handing over a data to the police I technically will have to calculate the hash value police will have to calculate the hash value cyber forensic expert will have to calculate the hash value and in an ideal scenario in a classic scenario in a textbook scenario my hash value must match with the police hash value they must match with the forensic experts hash value unless this is not complete the chain of custody is not complete this is what has called as a chain of custody chain of custody concept so basically thanks there is a message about the contents of a book no the reason I was telling you that in the book I have very elaborately detailed all these circumstances because this is I wouldn't call hyper technical but this is semi-technical and therefore the first chapter of my book I have written for my lawyer friends because we are not very tech savvy we are not very computer friendly we still belong to a generation or we still live an era where our knowledge of computer is only limited to the basics how to operate the phones how to operate the laptops how to operate the computers whenever we see very technical piece of electronic evidence we get puzzled therefore my entire first chapter of the book is on how to deal with the technical aspects and it is written in as easy language as possible and the feedbacks that I have received from the people is that the people have now gotten so much interest in the technical aspects that one of my colleague last week shared a case with me where they were planning to call a technical expert to cross examine and then after this after reading the chapter he decided to go for a cross examination himself and the feedback that we had was tremendous that he could very successfully cross examine we are waiting for the award we hope it will be good but the point is that don't don't fear don't have a fear of the technical aspect technical aspects are easy to crack only problem is that we have got unnecessary you know fear of this because of we we think it's a skeleton in the closet no it's not be comfortable with the technical terms they are very easy to understand I have tried my best to make it understand once you get good grip on the technical aspects it's very easy to cross examine the witness effectively for example let's take an example of an email email you have to have a header of an email otherwise you can't produce that email in the court of law if you ever try friends you just try in word you can type an email if you take a print of an email it looks the same if you type it out in the word MS word it looks the same if you if you print if you if the print is produced how else will you identify that that this is the word form and this is the actual print you can't and therefore header of an email is most important now how to get the header of an email and how to analyze the header is again sorry wouldn't be able to explain this here but I have tried to explain that in my book that how to get the header how to explain it from the header of an email you can know who had sent it if it is the phishing email if it's a duplicate email from which geographical area that email has come who has actually sent it if it's a duplicate email header is a repository of all this important information it's very technical but at the same time very easy if you apply your mind to it now let me come to a last part of today's session and then in couple of minutes we will have all these queries as well friends please remember that you can always examine the expert in the court of law under section 45a of the evidence act now can any expert come and depose technically no because sections 45a very specifically says that that person must be certified lab under section 79a of the evidence act if he is not certified then he cannot command depose under section 45a does it mean that all the doors are shut no if you look at section 45 you you can call him under section 45 because section 45 allows you to call the witness to depose about any matter of a scientific nature ultimately these are the matters of a scientific nature or of the technical nature therefore I think even if the doors of 45a are shut if it is not notified under 79a doors of section 45 are always open for you you can always call a witness you can you cross examine him on the electronic record you can but please look at section 22a of the evidence act it says that you can cross or you can admissions about the contents of the electronic record are allowed only if the genuineness is in question so you cannot straight away go on the contents of the electronic record you have to prove that this record is doubtful you have to establish it and then you can effectively cross examine the witness in the court of law and let me end with a very beautiful judgment that I that I will request you all to read of justice murlider in a case of dhrambir versus cbi in this case justice murlider has underlined the importance of a concept of a mirror image suppose if this is the hard drive you as a lawyer of an accused is entitled to have a mirror image of this hard hard drive image of a hard drive no mirror image mirror image means that as each and everything each and every bit in this machine will be copied and will be given to you this is called as a forensic image do not be satisfied with the ordinary image it has to be a forensic certified image because even if the data is deleted suppose for example from this iphone in the mirror image that will be shown you can discover the data which is deleted and therefore mirror images are very important and you have a right to obtain them under section 207 of CRPC this is what there are judgments of the supreme court the case of dhrambir talks about it and therefore please always insist on the mirror image unless you have a mirror image we also call it a clone copy or a forensic copy you will not be able to effectively cross-examine a witness with this I will stop for the day and I will open the floor for the questions and answers if there are any yeah who can get the certificate on section 60 65 b certificate in code sorry do I take because the questions in the chat box I'm taking those questions from the chat either you can take it from the top or from the bottom whether can you sorry if the loan is applied online through an application yeah and accepted online by accepting the terminal condition on online and verification was done through otp how the acceptance of the loan through otp in this kind of cases I have I have a chapter in my book how do you prove these kind of cases you can always take a snapshot there are certain applications for example one of the application is duck capture now how do you use these all these are all free software they're all free applications and you can use it yourself you can take a snapshot of the page which indicates that you had accepted that there was an acceptance of a loan you can take a snapshot of the otp these will constitute the prints of the electronic record so to say under section 65 b and you can prove them in the court of law there are many softwares which can help you to prove these kind of cases or to prove the how to capture the websites suppose if certain websites infringe your privacy then you can there are certain good softwares that can capture the entire website I have spoken about them at length in my book that you can capture website you can capture facebook's you can capture facebook data whatsapp data and these kind of applications where you accept the loans through the online platform whether a certificate of section 65 b has to be in the pleading stage or at the no it can be at the evidence stage in fact the courts have said that at the stage of marking the document into the into the record you have to have the section the certificate it's not required to be in the pleadings in a trap case she recorded the voice of accused while demanding I can read the question so that those who have not opened the chat and they are on the youtube they will understand in a trap case recorded the voice of accused while demanding bribe and during the trial they proved its identification by cfsl report only voice of the accused which was already marked as voice of accused was sent to cfsl for identification it was easy for the cfsl official to match the voice of the accused with the mark voice what can be the defense council do now this is called as there are there are ways and means to disprove the voice recording and there are certain techniques again as I told you at the cost of repetition that I have dealt with this this is a little technical part where this is called as a spectrograph graph analysis where if it's your case that it is not my voice then under section 45 you can have your own voice recording sample recorded you can send it for this analysis and you can have your own experts step into the witness box and depose under section 22a because you are now doubting the geniousness of electronic record which is a condition in section 22a and you can have your own witness examine that is the only way you can disprove that this is not the voice of the of my client but is being deliberately saddled on me how to cross examine in the whatsapp messages how to cross examine the whatsapp message no this is as good as cross examining anything cross examining the email cross examining the whatsapp again there is I have gone on around 12 to 14 illustrations how to cross examine whatsapp is one of them you will have to take a snapshot or there is a option if you right side if you click on the right side you can say you can always email the whatsapp history and you can take that email you can print that you can put 65b certificate elaborating the process and you can put that into electronic record into the evidence that that is as a proponent of the whatsapp chat if you want to cross examine then you will have to use the same data and you will have to cross examine as you regularly cross examine proponent of any documentary even as there is no separate class for it this is family courts in bhajavan hirayana are taking a record of already be exhibited cd pendrive mobile phone containing conversations and transactions between husband and wife on interim application of any party sir family visiting between the husband that conversations are violation of right to privacy of wife what is the remedy available so they are taking on record already exhibited cd pendrive mobile phones containing conversation and transactions between husband and wife on interim application of any party by stating bar content in neha versus pending is delivered by pander that conversion of violation of right of privacy of five no i did not get the purpose of a question are they taking it because if it is supposed to be a violation of right to privacy then how can they take it it's i think little self contradictory can it be allowed because according to him it is the right of violation of the privacy of no no no no it is it no no you can't oppose it just to elaborate we there is a doctrine called as a fruits of poisonacy which is applicable in us it means that if the source itself is illegal if the tree roots are itself illegal poisonous then the fruit is bound to be poisonous therefore the illegally acquired evidence becomes illegal now this is the doctrine of fruits of poisonous tree indian supreme courts have specifically negated this doctrine saying that these doctrine of fruits of poisonous tree does not apply in india and therefore you cannot oppose these kind of evidences they will go into the record though they are illegally procured if the court denies the application to get cdr report of the complaint how many years the cdr is stored now this depends on case to case basis there are there are few guidelines which i have made as an annexure to my book which contemplate around six months starting from six months to around two years depending on the service provider whether the service provider is a cellular company whether the service provider is a government body if it's a psu there are different different guidelines available but first thing you must do whenever you come to know that this data is going to be of importance to me you have to first send the notice of a preservation now i have given a format of notice of preservation in my book it should contain that this data is important you must identify the data you must give him a specific notice that this data is going to be of use in the court of law and please preserve it do not let it lapse because your internal guidelines say so i am going to use it in spite of it if they destroy it then IPC can be invoked for destruction of evidence you can also draw if the other side is an opponent you can also draw an adverse inference under 114g of the evidence act for destruction of the data therefore the first thing you must send is the preservation notice because you are not very sure as to how many days they will preserve it so to be on safer side yeah what are the steps to voice identification during cross examination sorry what are the steps what are the steps to voice identification during cross examination when audio is put by surprise no i told you voice identification is a technical chapter that i have dealt in my book where we have to be a little on a technical side to know the how to impeach the voice recording evidence i'll in fact if it's possible i would have just shown on the screen but it's a little technically difficult for me in fact the version that i in fact showcased on a screen is also not the final version of my book because i cannot show it being the whole thing being copyrighted but what i shown to you was a first draft of that had gone into making of the book but if you look at the chapter number six of my book it explicitly deals with how to deal with the voice recording and as i told you the only way you can do it is to by calling your own witness by giving him a voice sample and cross examining or examining him under section 22a that is the only way to do it what are the laws regarding preparation of the transcript of audio can it be written by a producer of 65b certificate obviously it can see the transcript can be made by anyone who has heard it himself because under section 60 it has to be by the person who has actually heard it or person who has actually seen it so it can be by anyone it can be by the producer of 65b it may not be even by the producer of 65b because 65b certification will be relating to the device transcript evidence will be separate evidence suppose if it is Vikash's CCTV camera or his mobile he records it and i am doing the transcript i will have to deposit independently that i heard this myself and i have put this on paper because his certificate will be about 65b saying that his mobile was in working condition and those condition that we just saw so there will be two certificates one about the authenticity of the transcript that i myself heard it and one by him watching for the correctness of his device yeah i'm taking it from the youtube it says yes is it necessary to move a separate application before trial court to lead the electronic evidence and if it's so then is it mandatory to provide the copy of those electronic evidence with this application i got the first part of it that is there a procedure to is there an application required no there is no application required if you look at the judgments of the supreme court generally we are under wrong impression that for secondary evidence we have to file an application i'm sorry i'm talking of secondary evidence i'll come to electronic as well but even for secondary evidence the the supreme court has said you don't need to file a separate application as long as you are putting on the record the foundational requirement of section 65 in your pleadings in your evidence you don't need to file a separate application for production of secondary evidence same same logic applies to 65b there is no need of any application suppose if this is the email i want to put it on the record it can be with 65b if it is not with 65b i just put it along with my pleadings at the time of framing of issues i can simply set up 65b certificate along with what we hear called pushes or with a covering letter there is no application that is required to be filed a lot of people are asking about the book the book is electronic evidence in the manual electronic evidence in the courtroom lawyers manual what i must tell you one thing since references made to the book there are almost now three prints have gone into the making and it's currently i think it's on the way to fourth reprint so it will take around probably two to three days for them to come out come out with the revised edition of this i think it's a fourth reprint isn't gone so you will probably may have to wait for two to three days probably to get the the fourth reprint that has gone but this is a revised and updated one the police verified the cdr of the mobile at the time of the accident using mobile that is establishing the location of the acute because i'm sorry i'm not able to hear you properly i think there is some just read the last question by siri nivas siri nivas kasa yeah the mobile verified thing the mobile the police verified the cdr of mobile at time of accident using mobile phone that it is that it is that establishing that the location of ecus okay jaymeen jewellery and all i will maybe share with vikaji once the judgements and once the session is over i will share the link for these judgments also obviously for my book but the just to answer the first patient police verified the cdr of mobile phone at the time of accident using mobile that it that is it that establishing that the location of i frankly i'm not getting exactly what is meant yes but yes cdr always is used for establishing the location of the accused and that is perfectly admissible to establish it i don't see a problem using it the last question is if there are two evidences set of whatsapp conversation and email response so do i give two 65 b certificates or one is enough there are sorry there are two evidences one is on the whatsapp chats and another is of email so two certificates would be required or one compulsory compulsory this is a very good question i must answer this in detail please always give separate certificates you can't have just one certificate in the court of law because 65 b the entire purport is that the nature the treatment that you give to each kind of electronic evidences always separate you cannot mix them up putting that together creates a lot of trouble and that is always undesirable and it leads to very unfortunate consequences if you try to combine two kinds of electronic evidences never do that yeah so the last question my pankaj gupta the video recorded on a mobile was shared as a cd with i o and 65 b was made to which was included in the chashik the cd because yeah i could not get it sorry the video recorded on the mobile was shared on a cd with the i o and 65 b was two made which was included in the chashik however the cd did not play in the courtroom for some technical reasons judge asked to prove the video copy in a pen drive does this need a section 65 b certificate does it what was the last line does it does it require need of no no no no no no yeah this is a very good question again i'll tell you something i at the outset address this issue that there are many times and insistence is made that you must produce and must play all this it is required just to establish the authenticity foundation and you cannot technically run away from playing the video footage in the court of law if the court asks you to do it because i refer to section 165 which gives power to the court to ask any or do anything that the court wants to ascertain for itself but coming to section 65 b the words words are very important without further proof or production of the original the moment 65 b is given you can tell the court that i have discharged my burden of proof because the words are without further proof further is very important word and without production of the original again production is very important word but having said that let me tell you friends that whenever the court is insisting for original record for the original device just to ascertain the authenticity please do not run away from it do not shy away from showing it court may then draw adverse inferences because ultimately if you know there are judgments of the supreme court that the if certain things have been requisitioned by the court and if not produced the courts are well within their powers to draw adverse inferences therefore let's not take that risk but going by 65 b it is not required the last question please do clarify as to who has the authority to give section 65 b certificate no this i said that the person in charge of the system the person in charge of the machine will have to give this 65 b certificate if you refuse if you try your best if you invoke those sections that i just told you in spite of that if he doesn't come forward to give it then you might have to then seek an exemption from producing it or you can then give 65 b certificate only thing you will do you will not use the word in my knowledge you will use the word in my belief because you can't vouch for his system you have to use the word believe that is the only change that will be made to the certificate in that but you will have to please mind that you will have to say that these are the attempts i made these are the efforts i took these are the endeavors i did still i have not been able to get it therefore by virtue of this paragraph of anjur bandit raukhotkar i am claiming an exemption and here is my 65 b certificate if you do that i think enough is done and then you can ask the court to exhibit that document into the record okay thank you Mr. Yuvraj it was an enlightening session thank you everyone stay safe stay blessed and tomorrow we have a session at 6 p.m by justice mahabi singh chohan a former judge from panjab and high court principles of interpretation under the contract act do stay connected with us thank you everyone